In Cranwell v Cullen, Cranwell’s (C) claim was rejected by an employment judge because she had not complied with the requirement which had just then come into force that she should contact ACAS before instituting relevant proceedings.  The claim was defective because C had indicated that she was exempt from early conciliation but none of the exemptions applied to the claim.

The EAT commented that although the facts of the case had not been heard, if the evidence supported the claim, C had been treated appallingly by her former employer. She had been subject to sexual harassment and treated in a demeaning, derogatory and discriminatory way, culminating in a physical assault. The very thought of conciliation would be problematic as it would involve C talking to someone who had treated her in the manner she described. In addition, her former employer had been subject to a legal order which prohibited him from contacting her. If so, she simply could not conciliate with him. However, C appeared not to appreciate that under the early conciliation scheme, if she had put forward those points to an ACAS Officer, it was highly likely the Officer would have concluded there was no point in further conciliation and would have granted her the appropriate certificate without her needing to come into contact with a man with whom she had so badly fallen out.

The EAT held that while it is impossible not to have sympathy with C’s position, the question is not one of sympathy but one of the law. S.18A of the Employment Tribunals Act 1996 requires that before a person can present an application to a tribunal he or she must provide ACAS with prescribed information, unless one of the exceptions in S.18A(7) applies. As C had not provided Acas with the information required, and none of the exceptions applied, then the tribunal was right to reject the claim.

The case demonstrates that the requirement to contact Acas for early conciliation before presenting a tribunal claim is being strictly applied. This is the case even where the treatment being alleged is appalling and where there are legal restrictions on one party talking to the other. A prospective claimant must therefore still comply with the requirement to contact Acas, but with the caveat that having done so is not actually required to engage in conciliation.

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